President: The Union Executive |Indian Constitutional Law
President is considered as the ceremonial head of the state of India. He is also considered as the nominal head of the government .He is elected by the electoral college which comprises of both the houses of the parliament and the legislative assemblies of each state and territories .Article 52 talks about the about a post called as president of India .It is necessary that a president should exist according to the constitutional structure of India and there exists no exception to the rule .In case there is an vacancy then Vice President will act as the president but the vacancy has to be filled within the period of 6 months . Article 53(1) states that Executive power of the union lies on the president .The power can be exercised by the president directly or indirectly in accordance with the provisions of the constitution .The power of Supreme Command of Defense forces has also been levied on the president which has to be exercised in accordance with law which has been mentioned under Article 53(2) in the constitution of India .The military power which has been vested on the president is subordinate to the civil power .The Parliament gives directions to the president as to exercise the power of the command of the defense forces .The powers which are vested to the president cannot be exercised or delegated to any other authority.
The executive powers of the president have not been clearly defined in the constitution. They are hence termed as the powers which are not the judicial or the legislative powers. The powers are related to the field of public health, housing, education, transport etc. The president has also powers such as framing rules, regulations and notifications .He also has some judicial powers to remit or reduce punishments or even grant pardon under Article 72 of the constitution of India in the cases of where the punishment of sentence is by Court Martial and the sentences of death .The power of pardon includes temporary suspension of the sentence or postponement of the execution of the sentence. He also appoints the prime minister, Governor, and Judges of the Supreme Court, Attorney General and Commission for SC/STs. Under Article 352 to 360 the president also has the powers to suspend the fundamental rights at the time of the emergency.
Under Article 111 it is stated that when a bill is passed in the parliament it needs assent of the president in order to make it law. Money bills cannot be introduced in the parliament without his recommendation and also money cannot be granted without his assent. The council of ministers can give advice to him and he is bound to listen to him. The president is not answerable to the legislature
Section 54 of the Constitution talks about election of the president and a president is elected by electoral college which consists of elected members of the parliament and the legislate assembly of the states which will also include Delhi and Pondicherry .The presidential elections will be conducted irrespective of the fact that there are vacancies in legislative assembly or not .
Under Article 55 (2) the voting formula of the election has been stated which is calculated on the population of the state to which the MLA or MP belong .Under Article 56 the term of the office of the president has been provided which is extended for the period of 5 years .When on some grounds the president wants to leave his office then he can write to the vice president to resign from his office .If he violates any provision of the constitution then he can be impeached according to the procedure laid down in Article 61 of the constitution .Article 61 talks about the procedure for the purpose of impeachment of the president. The charges can be framed by either house of the parliament but the resolution to be passed by 2/3rd of the members of the Parliament. When the charges are framed by one house of the parliament then the other house has to investigate those charges and the president has be represented at the time of the investigation. If the house which is investigating passes a resolution by 2/3rd majority then the president will be removed from the office on the date of passing the resolution
Under Article 57 it is stated that a president can be re-elected. There is no bar to the re-election of the president unlike present in the United States of America. Article 58 talks about the provision related to the qualifications for Election as President. The qualifications are that he should be the citizen of India, completed the age of 35 years and should be qualified enough to become member of both the houses of the parliament .He should not hold any office of profit under the Indian government or state or any authorities under this government .The office of profit does not include president and vice president, governors or ministers of either union or the state. He should not be member of any house of the parliament. If he is then he has to leave it when he is appointed as the president. He can reside in the resident which is officially allocated to him free of cost and also other privileges which are specified by the parliament. The allowances which are provided to the president cannot be curtailed till he holds his office.
When a president is elected then he has to take oath in the presence of CJI or the Senior most Judge of the Supreme Court under Article 60.After the office of the president falls vacant then the vacancy should be filed before the term expires and in the case of death, resignation then it should not be latter than 6 months from the expiry of the term. In case of any dispute which is related to the election of the president will be decided by the Supreme Court then it will be final
Landmark Cases on the President
In the case of Ram Jawaya Kapur vs. State of Punjab it was held that the real powers are vested on the council of ministers. The president only exercises his power on the aid and advice of the president.
In the case of UNR Rao v. Indira Gandhi it was stated that our constitution is modeled as per the British parliamentary system. Hence when the council of ministers enjoys majority in the legislature, he has virtual control over both legislature and the executive.
In the case of Shamsher Singh v. State of Punjab it was held that all the Executive Functions of President has to be performed by the president with the help of the council of ministers .There are only three exceptions to this which are the choice of the prime minster, dismissal of the government but the they refuse to leave the office and in the case of the dissolution of the house.
In the case of Purno Agitok Sangma v. Pranab Mukherjee, the petitioner challenged the election of the president of Pranab on basis of him holding office of profit. The Supreme Court held that issues raised in the case does not require regular trial and election of Pranab was upheld by the president
In the case of Kehar Singh v. Union of India it was stated that the power under Article 72 to grant pardon and does not require any guidelines for the same. The president can go to the merits of the case but still it subjected to the process of Judicial Review.
In the case of Maru Ram v. Union of India, it was held that the President exercises its power of pardon on the advice of Home Minister. It is not open to the president to choose whom to give pardon and whom to not. The government should also make guidelines with respect to this power. The court also repealed the powers given in the case of Kehar Singh.
In the case of Epuru Sudhakar v. Govt. of A.P. the power of Judicial Review to the judiciary is available under 72 and 161 on the grounds which are when the order is passed on the application of mind, or is malafide ,or made on irreverent considerations and when the relevant materials are kept out of consideration.
Council of Ministers and Prime Minister
Under Article 74 it has been mentioned that there should be a council of ministers headed by the prime minister who would help the president in the execution of his powers and functions. The president also can ask the council of ministers to reconsider their advice but when the advice is reconsidered then he is bound the advice. Also, the advice given by the president is not a mere recommendation but it is binding on the president.
Under Article 75(3) it has been stated that the council of ministers is responsible to the House of the people. Under Article 75 (3) the council of ministers makes the designs and it is the duty of the Prime Minister to inform the President all the details of the council. A president cannot function without the council of ministers. The Council has the authority over levying and the collection of taxes. It is also stated that the total number of Ministers including the Prime Minister should not exceed 15% of Total Members of House of People. The council of ministers hold office till the time of pleasure of the president. They are collectively responsible to the House of the People. They also have taken an oath of office as per 3rd Schedule. The salaries pf the council of ministers is also decided by the parliament
When there is a majority in Lok Sabha then the president will be appointing the prime minister. When the prime minister resigns the council also resigns. The Council of Ministers as well as the Prime Minister enjoys the office at the pleasure of the president.
Speaker/ Dep. Speaker
Speaker is the presiding officer of Lok Sabha. The powers of the Lok Sabha Speaker are both administrative as well as discretionary. He is the person who presides over the meetings in the Lok Sabha. He is the person who conducts business in Lok Sabha by ensuring discipline and decorum among members. He is also the guardian of the rights and privileges of the members of the Lok Sabha. He should coordinate who should speak at what time, the questions to be asked, the order of proceedings to be followed, among others. He has to use his/her power to vote, in order to resolve a deadlock. When there is no quorum in the House, then Speaker to adjourn the House or to suspend any meeting.
He decides the agenda of a meeting of the Members of the Parliament. He should ensure the discipline of the House. He can also disqualify a Member of Parliament from the House on grounds of defection. He also issues warrant to execute the orders of the House. When there is joint sitting of the two Houses of Parliament. Then he will preside over the meeting. He also decides on granting recognition to the Leader of the Opposition in the Lok Sabha.
He is considered as the arbiter and interpreter of those provisions which relate to the functioning. His/her decisions are final and binding and cannot be questioned, challenged or criticized. There are also only three cases when the seat of the speaker is vacant that is when he dies, resigns or removed
The chairman is appointed by the Vice President. The tenure of the chairman is 5 years. He can submit his resignation to the president. He can be removed by the president along with the members of Rajya Sabha within 14 days.
In the case of Supreme Courts Advocates on Record Assn. v. Union of India it was held that the matters relating to appointment of judges, the President may take decision only in consultation with CJI and not the council of ministers
In the case of SP Anand v. H.D. Deve Gowda it was held that it is not necessary that at time of appointment the Prime Minister that he should be member of either house.
In the case of UNR Rao v. Indira Gandhi it was held on Dissolution of the House, the Council does not resign as president cannot work without Council.
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